Parliamentary Law on the Appointme'nt of Special 
'b Committees of the Senate. 


TWO PEOTESTS 

OF 

HON. CHARLES SUMNER, 


OF ]VrA.SSA.CI-IXJSETTS, 

AGAINST 


a HE COMPETENCY OF THE SENATE COMMITTEE TO • 
INVESTIGATE THE SALE OF ARMS TO FRANCE; 

4 


MAKCII 2C AND 27, 1872. 



WASHINGTON: 

F. k J. RIVES & GEO. A. BAILEY, 
REPORTERS AND PRINTERS OP THE DEBATES OF CONGRESS. 

,v 1 8 7 2. 

V’ 

i 

i<v 






Parliamentary Law on the Appointment of Special 

the Senate. 


Committees of 




March 26, 1872, Mr. Sumner appeared before the 
committee to investigate the sale of arms by the 
United States to France during the French and Ger¬ 
man war, in response to a communication signed 
by the chairman of the committee requesting his 
attendance. After reading this communication, Mr. 
Sumner proceeded to read and file a protest in the 
following terms: 

Protest. 

Personally, I object ‘to no examination. 
Willingly would I submit to the most search¬ 
ing scrutiny, not only in the present case, but 
in all ray public life. There is not an act, 
letter, or conversation at any time that I would 
save from investigation. I make this state¬ 
ment, because I would not have the protest I 
deem it my duty to offer open to suspicion 
that there is anything 1 desire to conceal or 
any examination I would avoid. 

But appearing before the committee on an 
invitation, which is in the nature of a sum¬ 
mons, to testify in the investigation origin¬ 
ally moved by me into the sale of arms to 
France, I am obliged to consider my duty as 
a Senator. Personal inclinations, whatever 
they in ay be, cannot be my guide. I must do 
what belongs to a Senator under the circum¬ 
stances of the case. 

Before answering any questions, I am con¬ 
strained to consider the competency of the 
committee which has summoned me. It is of 
less importance what these questions may be, 
although there are certain obvious limitations 
to which I will allude at the outset. 

The examination of a Senator by a commit¬ 
tee of the Senate on a matter outside of the 
Senate, and not connected with his public 
duties, is sustained by precedents, as when 
Mr. Seward and Mr. Wilson were examined 
with reference to the expedition of John Brown; 
but any examination with regard to his public 
conduct, and especially with regard to a 
matter which he has felt it his duty to lay 
before the Senate in the discharge of his pub- I 


lie duties, is of very, doubtful propriety. In 
his public conduct a Senator acts on his re¬ 
sponsibility, under sanction of an oath, and 
the Constitution declares that for any speech 
or debate he shall not be questioned in any 
other place. This inhibition, while not pre¬ 
venting questions of a certain character, must 
limit the inquiry ; but the law steps forward 
with its own requirements, according to which, 
it is plain that a Senator cannot be interro¬ 
gated, first, with regard to his conference with 
other Senators on public business, and, sec¬ 
ondly, with regard to witnesses who have 
confidentially communicated with him. 

Referring to the most approved work on the 
Law of Evidence—I mean that of Professor 
Greenleaf—we find under the head of “evi¬ 
dence excluded for public policy” at least four 
difiFerent classes of cases, which may enlighten 
us in determining the questions proper for 
Senators: 

1. Communications between a lawyer and 
client; and are not the relations of Senators 
in the discharge of their public duties equally 
sacred? 

2. Judges and arbitrators enjoy a similar 
exemption with regard to matters before them. 

3. Grand jurors, embracing even the clerk 
and prosecuting officers, cannot be examined 
on matters before them. 

4. Transactions between the heads of De¬ 
partments and other subordinate officers are 
treated as confidential. 

Plainly, the conferences of a Senator in the 
discharge of his public duties, cannot.be less 
protected. 

This rule is equally imperative with regard 
to witnesses who have confidentially communi¬ 
cated with a Senator. Here, again, I quote 
Professor Greenleaf, who quotes the eminent 
English judge of the middle of the last cen¬ 
tury, Lord Chief Justice Eyre, as follows: 

“There is a rule which has universally obtained 
on account of its importance to’the public for the 
detection of crimes, that those persons who are thu 









4 


channel by means of which that detection is made 
should not be unnecessarily disclosed.”—Crreen^ea/ 
on Evidence, 250. 

Then tlie learned professor proceeds: 

‘‘All were of opinion that all those questions 
which tend to the discovery of the channels by which 
the disclosure was made to the officers of justice, 
were ui)on the general principles of the convenience 
of public justice to be suppressed; that all persons 
in that situation Avere protected from the discov¬ 
ery.”— Ibid. 

These words are explicit, and nobody can 
question tliem. 

1 am led to make these remarks and adduce 
these authorities because, perusing the testi¬ 
mony of Mr. ScHURZ, I find that he was inter¬ 
rogated on these very matters ; and since I, 
too, am summoned as a witness, I desire to 
put on record my sense of the impropriety of 
such questions. It is important that they should 
not become a precedent. And here again I 
declare that I have nothing to conceal, nothing 
that I would not willingly give to the world 
under any examination and cross-examination; 
but I am unwilling to aid in the overthrow of 
a rule of law which stands on unquestionable 
grounds of public policy. Especially is it im¬ 
portant in the Senate, where,' without such 
protection, a tyrannical majority might deter 
a minority from originating unwelcome inqui¬ 
ries. 

From these preliminaries I proceed to con¬ 
sider the competency of the present commit¬ 
tee. Requested as a Senator to appear before 
you, I deem it my duty to protest against the 
formation and constitution of the committee 
as contrary to unquestionable requirements of 
Parliamentary Law, and 1 ask the committee to 
receive this protest as my answer to their letter 
of invitation. I make this more readily because 
in my speech in the Senate, February 28,1872, 
entitled “Reform and Purity in Government, 
Neutral Duties, Sale of Arms to Belligerent 
France,” I have set forth what moved me to 
the inquiry, being grounds of suspicion Avhich, 
in my judgment, rendered the most searching 
inquiry by a committee friendly to inquiry 
absolutely necessary. 

The general parliamentary rule in the ap¬ 
pointment of speeial committees requires that 
they should be organized so as to promote the 
business or inquiry for which the committee is 
created. This requirement is according to 
obvious reason, and is sustained by parlia¬ 
mentary authorities. In familiar language, a 
proposition is committed to its friends and not 
to its enemies. 

In illustration of this rule we are told that 
members who have spoken directly against 
what is called “the body of the bill,” mean¬ 
ing, of course, the substance of the inquiry, are 
not expected to terve on the committee, but 
should they be so nominated, to decline. 
Their presence on a committee is not unlike 


participation in a trial by a judge or juror 
interested in the result. 

Very little reflection* shows how natural is 
this rule as an instrument of justice. The 
friends of a measure, or the promoters of an 
inquiry, though in the majority on a commit¬ 
tee, can do no more than adduce evidence that 
exists, so that the business cannotsufferthrough 
them, while those unfriendly to a measure, or 
hostile to an inquiry, may, from lukcAvarmness 
or neglect, or possible prejudice, fail to pre¬ 
sent the proper evidence or recognize its just 
value, so that the business will suffer. In legis¬ 
lation, plainly, those who believe an inquiry 
necessary are the most proper persons to con¬ 
duct it, and being so, they are selected by par¬ 
liamentary law. 

This rule may be traced in the history of 
Parliament anterior to the settlement of our 
country. The ancient statement w’as simply 
that “those against the bill should not be on 
the committee.” The meaning of the rule is 
distinctly seen in historic cases which I pro¬ 
ceed to adduce. 

In the House of Commons as far back as 
December 4,1584, in the reign of Queen Eliza¬ 
beth, on the commitment of a bill relating to 
misdemeanors, the entry in the journal men¬ 
tions that it was given to a certain member, 
and then says, “and Mr. Sergeant Harris to 
be exempted out of the committee because he 
spoke against the body of the bill.” In other 
words, a speech against a measure disqualified 
the learned memljer, so that, according to the 
expressive words, he was “exempted out of 
the committee.” {jyEwes's Journals of the 
Earliaments during the reign of Queen Eliza¬ 
beth, vol. 2, p. 634.) 

Next in order of time is the case of a bill 
affecting the city of London, which came up 
November 11, 1601, and the question was if 
the members for London, known to be against 
the bill, could be of the committee. The 
rule of the House Avas stated in these positive 
words: “That those against the bill should 
be no committee.” Of course, this rule Avas 
not merely o^form but of substance. It meant 
that those really against the measure Avere not 
proper for the committee, allof Avhich appeared 
in the recorded debate and proceedings that 
ensued. A leading member, Mr. Wiseman, 
said: 

‘‘ The House allowing of this bill to be commit¬ 
ted are in my opinion to disalJoio any that Avill be 
against the body of the bill for being committees.” 

Sir Edward Hobby folloAved : 

‘‘And for my opinion, I think that he that is 
against the body of the Bill can be no committee.” 

The report then proceeds: 

‘‘Then the Speaker stood up and said,” =>= * 

* * ‘‘All that will have a man that hath been 

against the body of the bill to be a committee, let 
them show their opinion by saying yea: and not one 
said yea. All that Avill not, say no ; and all said no.” 

I take this important precedent from “ Town- 








6 


shend’s Historical Collection, or an exact ac¬ 
count of the proceedings of the Four last Par¬ 
liaments of Queen Elizabeth,” (pp. 208,209.) 
The same account is found also in D’Ewes’s 
Journal of the Parliaments during the reign 
of Queen Elizabeth, vol. 2, p. 434. 

Thus, on submission of the question by the 
Speaker, the House unanimously decided that 
they “would not have a man that hath been 
against the body of the bill to be a committee.” 
According to the report “all said no,” and 
that unanimous “no” is the voice of parlia¬ 
mentary law, repeated ever since. The phrase 
“ against the body of the bill ” is strong and 
suggestive, showing the purpose to exclude 
those who were unfriendly to the measure. 

Following the history of the rule we meet 
it again as stated by Hakewell in his Modus 
teneiidi Parliamentum^ published in 1G71 : 

“He thatspeaketh directly against thebodyofthe 
bill, may not be named a committee, for he that 
would totally destroy will not amend.” (Page 146.) 

Here again is the declared purpose to save 
the measure from the hands of enemies. 

Then follows a case remarkable for words 
which have become familiar in Parliamentary 
law. It was that of Colonel Birch, who, Febru¬ 
ary 11, 1677, brought into Parliament a bill 
for settling a public register for lands in the 
several counties, and in his remarks said : 

“I begged you formerly no« to put the child to 
a nume that cared not for it. For it was formerly 
committed to two lawyers and the thing was 
lost.”— Urey’s Debates of House of Commons, vol. 5, 
p. 145. 

Here the commitment of a bill for reform 
in law to “two lawyers” was condemned, 
because they were a nurse that did not care 
for it, and the casual remark of the author of 
the Bill has become historical. There is good 
law as well as sense in his saying that a child 
is not put to a nurse that cares not for it. 
Parliamentary Law, in the creation of special 
committees, always seeks those who care for 
the business, whatever it may be. One against 
an inquiry, or believing that there is no occa¬ 
sion lor it, is repudiated by this rule, so just 
and benign, and also so venerable with years. 

The preparation of articles of impeachment 
against the Earl of Danly, Lord Treasurer in 
the reign of Charles II, December 21, 1678, 
presented the same rule in another aspect. It 
was no longer a bill, but an inquiry or invest¬ 
igation, when the speaker said: 

“No man, by the ancient rules of the House, is to 
be of a committee of a thing he is against.”—(rrey’s 
Debates, vol. vi., page 373. 

Here the language is somewhal broadened, 
though in entire keeping with the other cases. 
A man cannot be on a committee “of a thing 
he is against.” In other words, if he is against 
the inquiry for which a committee is created, 
he cannot be on it. And here again good faith 
requires that the rule should be observed not 
merely in form but in substance. 


These cases were analyzed and adopted by 
Mr. Jefferson in his authoritative “ Manuel,” 
so that they have become American Parlia¬ 
mentary Law, as obligatory here as in Eng¬ 
land. Speaking always by their essential 
reason, but with the weight of precedent also, 
they are not less binding than if promulgated 
with an enacting clause. 

Mr. Jefferson furnishes other and most im¬ 
portant words of his own : 

“ And when any member who is against the bill 
hears himself named of its committee, he ought to 
ask to be excused.” 

This is the language of our Manual, declaring 
the duty of a member who hears himself named 
of a committee on a bill he is against. Of 
course the general rule is applicable to any 
other matter referred to a committee. The 
words are, “ he ought to ask to be excused.” 
Of course his continuance on the committee, 
or any attempt to exercise its duties, is a vio¬ 
lation of Parliamentary Law, unless you are 
ready to discard this positive injunction. 

Mr. Jefferson then adds by way of illustra¬ 
tion : 

“Thus (March 7, 1606) Mr. Hadley was, on the 
question being put, excused from being of a com¬ 
mittee, declaring himself to bo against the matter 
itself.” 

And our great authority declares that this 
is “ a constant rule.” 

Such is Parliamentary Law, and Mr. Jeffer¬ 
son has answered in advance the possible ob¬ 
jection that this is English and not American. 
After saying in his preface to the Manual that 
the Senate has given to these rules “the sanc¬ 
tion of their approbation,” he announces 
“ the law of proceedings in the Seante” as 
“ composed of the precepts of the Constitu¬ 
tion, the regulations of the Senate, and, 
where they are silent, of the rules of Par¬ 
liament.'^ Such, according to him, is the 
law of our proceedings. The “Manual” 
which he presents he hopes others may fill 
up, “ till a code of rules shall be formed, the 
effect of which may be accuracy in business, 
economy of time, order, uniformity, and im¬ 
partiality.” The last word is “impartiality,” 
which, doubtless, is a main object to be se¬ 
cured. 

Any one disposed to neglect these rules, 
will find a warning from Mr. Jefferson. In 
his opening chapter he quotes these words 
from the famous Speaker (Jnslow: 

“ That these forms, as instituted by our ancestors, 
operated as a check and control on the actions of tho 
majority, and that they were in many instances a 
shelter and a protection to the minority against the 
attempts of poiocr.” 

Mr. Jefferson follows this quotation by de¬ 
claring the “forms and rules of proceedings 
to be” the only weapon by which the minor¬ 
ity can defend themselves, and by which “ the 
weaker party can be protected from those 
irregularities and abuses which the forms were 

















6 


intended to check, and which the wantonness 
of power is but too often apt to suggest to large 
and successful majorities.” 

Thus is the parliamentary rule which forbids 
a person unfriendly to the business of the 
committee, whatever it may be, whether bill 
or inquiry, from serving on the committee, 
one of those inhibitions by which public busi¬ 
ness is promoted, by which impartiality is 
secured, and especially by which a minority is 
shielded against the wantonness of power. 

The Congressional Globe makes it easy to 
apply what has been said to several of this 
committee. Unless the law, as illustrated by 
ancient cases, and adopted by Mr. Jefferson, 
is entirely neglected—unless the rule so fre¬ 
quently enunciated is set at defiance or treated 
as a sham'—there are at least three serving on 
the committee in violation of Parliamentary 
Law. In undertaking to serve they were un¬ 
doubtedly oblivious of the time-honored re¬ 
quirement or did not appreciate its stringency. 

Not only every Senator, but the whole 
country has a'n immeasurable interest in the 
preservation of those rules by which what Mr. 
Jefferson justly calls “the wantonness of 
power” is restrained and minorities are pro¬ 
tected against majorities. Any shock to them, 
as in the present case, becomes a precedent 
by which liberty and justice suffer. As a 
Senator appearing before this committee, at 
their request, I deem it my duty to file this 
protest, in the sincere hope that whatever may 
be the result of the present inquiry, the open 
violation of Parliamentary Law in the forma¬ 
tion and constitution of the committee will 
not be permitted to become a precedent here¬ 
after. When law is sacrificed individuals may 
for a moment seem to triumph, but it is at the 
cost of a great safeguard for the good of all. 

CHARLES SUMNER. 

Senate Chamber, March 26, 1872. 

_ On motion of Mr. Carpenter of the Committee, 
it was ordered that a subpena in regular form be 
issued to him returnable the next day to be served 
by the Sergeant-at-Arms, which was duly issued 
and served. 

March 27 Mr. Sumner appeared, and, after the 
reading of the subpena, proceeded to read a second 
protest. 

Second Protest. 

Since reading and filing my protest yester¬ 
day I have received by the hands of the Ser¬ 
geant-at-Arms a subpena commanding me to 
appear before this committee. In answer to 
this subpena, I now appear. 

It is my duty to delare that ray judgment as 
originally set forth in ray protest is in no re¬ 
spect altered by this subpena. I do not think 
the committee more competent to-day than 
yesterday. I still find several occupying seats 
on the committee in violation of an unques¬ 
tionable rule of Parliamentary Law. The 
record shows that they signalized themselves in 


the Senate by open speech against the pending 
inquiry and those who brought it forward, or, 
according to the language of the old rule, 
“ against the thing,” and, therefore, disquali¬ 
fied themselves as much as a judge who has 
been counsel in a case, or a juror who has 
declared his opinion beforehand. This dis¬ 
qualification is not founded on argument or 
inference, but on peremptory rule, traced back 
many generations, illustrated by numerous au¬ 
thorities, and constituting part of what Mr. 
Jefferson calls the “code” for the government 
of the Senate, having, as he says, “ the sanc¬ 
tion of their approbation.” 

Besides the authorities, which I cited yester¬ 
day, there are two others from our own coun¬ 
try, which I deem it my duty to adduce. The 
first is that of Gushing’s Lex Parliamentaria 
Americana, or the Law and Practice of Legis¬ 
lative Assemblies in the United States. Here 
we learn how completely a committee is placed 
by Parliamentary Law in the hands of the 
mover, thus: 

“ It became the established practice for the mem¬ 
ber, upon whose motion a committee had been 
ordered, to move the names of the members to com¬ 
pose it—being, of course, of his own selection; his 
own name being among them, and perhaps the first 
named on the list. If he felt any delicacy in mov¬ 
ing his own name, the motion might be made by 
some friend, as on the occasion of the appointment 
of the committee to prepare articles of impeach¬ 
ment against Lord Melville, which had been ordered 
on the motion of Mr. Whithead, that gentleman 
was first appointed one of the committee, on the 
motion of Lord Temple. Then, on the motion of 
Mr. Whithead, the other members of the com¬ 
mittee (Lord Temple being one) were appoint¬ 
ed.”— Gushing, p. 729. 

As this was a case of investigation, it is a 
precedent for us now. But our committee was 
constituted in a very different manner. Mr. 
Cushing vindicates the practice of allowing the 
mover of a proposition himself to nominate 
the committee for the consideration of the 
House, saying: 

“That the House, by adopting the resolution for the 
committee has signified its willingness that the sub¬ 
ject shall be so considered or investigated ; that the 
member nominating the committee must besupposed 
to feel as strong an interest in the proper considera¬ 
tion of the subject as any one, and also to possess or 
to be willing to obtain the knowledge necessary to 
enable him to decide upon the qualifications of the 
members he selects.”—p. 722. 

In this vindication the careful and elaborate 
author shows how completely the early rule is 
recognized. The same learned authority, while 
stating the English and American Parliament- 
ary Law, shows how the examination is con¬ 
ducted : 

“ When an inquiry is instituted and an examina¬ 
tion 01 witnesses is undertaken by the House in its 
inquisitorial capacity, it is customary for the mem¬ 
ber on whose motion or suggestion an inquiry has 
been engaged in, or for some of the members voting 
with him for the inquiry, to take the lead in the ex¬ 
amination of the witnesses;” h: * * -.h 

^b^r words, to examine the witnesses in 
chid”—Gushing, page 383. 

Plainly, according to this usage, Mr. Schurz, 








7 


and not Mr. Hamlin, should take the lead and 
examine the witnesses in chief. 

The other parliamentary authority to which 
I refer is Hon. R. M. T. Hunter, former 
Speaker of the House of Representatives. In 
his valedictory speech, March 3, 1841, this 
gentleman, who brought thought and study to 
the discharge of his public duties, took occa¬ 
sion to explain the principles governing the 
formation of committees, and all must admit 
that he did it with a clearness and philosophy 
I not surpassed in parliamentary history. Ac- 
! cording to him those having the affirmative 
of a proposition should have the direction of 
the committee. Speaking generally, he says : 

“The party upon whom it naturally devolves to 
propose a question ought to have the power, it would 
seem, to present its proposition in the shape for which 
it is willing to be responsible, and, as the different 
parties hold the affirmative, according to the nature 
of the question, so ought the constitution of the 
committees to bo varied.” 

Then, in language precisely applicable to 
the present case, the speaker says; 

“In committees of _ investigation it is equally 
clear that the opposition,-jr/fo hold the affirmative, 
should have the majority or the power.” (Cushing, 
p. 1008, appendix XIV.) 

This instructive statement is in admirable 
harmony with the rule as declared in early 
times, that those “against the thing” cannot 
go on the committee; and that a measure, like 
a child, is not put to a nurse thatcares not for 
it. The old parliamentarians were less phil¬ 
osophical than the American speaker; but 
each meant the same thing. The prime object 
is opportunity and fair play for those bringing 
forward a proposition or holding the affirma¬ 
tive. A committee organized to sustain the 
negative is the ve'ry committee described as 
a nurse that cares not for the child ; and, there¬ 
fore, is a committee not tolerated by Parlia¬ 
mentary Law. 

Thus, from all quarters, beginning with the 
distant in time, embracing Jefferson, the father 
of American Parliamentary Law, Cushing, its 
most authoritative American expounder, and 
not forgetting an American speaker, proceeds 
* concurring testimony to the parliamentary rule 
requiring an inquiry to be placed in the hands 
of its friends; especially is it necessary that the 
chairman, who directs the inquiry and exam¬ 


ines the witnesses, should be known as one of 
its friends. 

Therefore, I must be pardoned if I renew my 
protest against the competency of the present 
committee. I protest against it as constituted 
in flagrant violation of Parliamentary Law, 
and I protest especially against the acting 
chairman, who undertakes to direct this in¬ 
quiry and to examine witnesses, as not coming 
within the conditions established by rule, by 
usage, and by reason. The record shows that 
he did not move the inquiry, nor did he coop¬ 
erate with the mover, or take any part in sus¬ 
taining him, while in open speech he showed 
himself “against the thing.” I object to the 
acting chairman as to a judge or juror disqual¬ 
ified to sit in a court. 

I make this second protest with infinite re¬ 
luctance. But the committee leave me no 
alternative. In their invitation, in the nature 
of a summons, and now in their subpena, they 
compel me to declare my objection to their 
competency. Seeing it as clearly as I do, and 
feeling it as strongly as I do, I cannot avoid 
expressing it. If I do so twice, it is because 
the committee have laid me twice under this 
obligation. Beyond that sentiment of duty 
which is with me a rule of life, I am encour¬ 
aged to this effort by the hope that, even if the 
present committee cannot be corrected in con- ^ 
i’ormity with Parliamentary Law, its inoompe- ^ 
tency is so clearly exposed that it will be 
powerless hereafter as a precedent. If obliged 
to witness the present dishonor of a time- 
honored rule, I would at least save this safe¬ 
guard for the future. 

In thus declaring my profound sense of the 
wrong that has been attempted, I do all in my 
power to maintain Parliamentary Law invio¬ 
late. I regret that 1 cannot do more. 

With this explanation, and yielding to the 
command of the committee, I offer myself for 
examination on matters proper for inquiry. 

But I do it under protest. 

CHARLES SUMNER. 

Senate Chamber, 27^7t April, 1872. 

Mr. Carpenter moved that the two Protests be 
returned to Mr. Sumner as disrespectful to the com¬ 
mittee. On a subsequent day the motion was with¬ 
drawn. 



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